Ninth Circuit rejects gov’t appeal in wiretap case

A terse appeals court ruling shoots down the government's latest effort to …

The Ninth Circuit Court of Appeals has rejected the government's plea to stay a January ruling allowing an Islamic charity that alleges it was subject to illicit warrantless wiretapping to proceed with its lawsuit. But Obama administration attorneys have signaled that they plan to continue fighting tooth and nail to avoid turning over further information.

We agree with the district court that the January 5, 2009 order is not appropriate for interlocutory appeal. The government’s appeal is DISMISSED for lack of jurisdiction. The government’s motion for a stay is DENIED as moot.

The Justice Department had sought to block an order by Judge Vaughn Walker, who is also presiding over the more widely-publicized EFF lawsuit targeting telecoms that participated in a secretive NSA eavesdropping program, requiring the government to turn over a "secret" document that purportedly shows that the al-Haramain Islamic Foundation was subject to warrantless wiretaps.

The document had been handed over to attorneys for the foundation, which the government has labeled as a "Specially Designated Terrorist Group," thanks to a government blunder. The government was able to retrieve the document by invoking the state secrets privilege, and a court agreed that the foundation could not use it to establish standing to sue under the redress provisions of the Foreign Intelligence Surveillance Act. Lawyers for al-Haramain, however, were able to establish standing to Judge Walker's satisfaction by citing evidence in the public domain—at which point Walker ordered the Justice Department to hand over the document and arrange for security clearances that would allow the foundation's attorneys to participate in the litigation.

The government sought to persuade Walker to stay his own ruling, which the judge declined to do. Normally, appeal to a higher court—such as the Ninth Circuit—must wait for the resolution of a case at the lower level, but in this case the Justice Department sought an "interlocutory" appeal, seeking the appellate court's intervention in an ongoing proceeding. As the ruling quoted above makes clear, they fared no better there: the Ninth Circuit's response means, in effect, "Walker's your judge; if he doesn't want to give you a stay, tough luck."

Game over, then? Not quite yet. Within hours of the Ninth Circuit's ruling, the Obama administration filed papers with the court requesting that it "refrain from further actions to provide plaintiffs with access to classified information," and suggesting that yet another appeal may be in the works.

In this latest filing, the government notes that they have complied with the order to expeditiously process (and approve) security clearances for two of al-Haramain's attorneys. But this, according to the new document, is "as far as the Government may go at this time." In addition to a clearance, access to the sensitive documents involved in the case requires a putatively unreviewable executive branch determination that the plaintiff's lawyers have a "need to know" the relevant information—a determination executive branch officials have declined to make. The filing also requests advance notice of the court's intention to make classified documents turned over for in camera review available to the plaintiff's lawyers—in which case the government claims the right to withdraw those documents. (Al-Haramain attorney Jon Eisenberg calls this a "not-so-thinly-veiled threat to send Executive Branch authorities (the FBI? the Army?) to Judge Walker's chambers to seize the classified material from his files!") The Justice Department's brief is accompanied by both public and classified declarations from officials at the National Security Agency and the Office of the Director of National Intelligence certifying that the relevant documents are highly sensitive, and that harm to national security would accrue if they were disclosed. One such public declaration also notes that the new classified submissions correct an error in one of the government's previous filings.

The stage appears to be set for a separation of powers showdown between Judge Walker and Obama's Justice Department: Walker has suggested that he may now have discretion to permit the cleared attorneys to view submitted documents, while the government asserts that the court has no power to override the executive branch's conclusion that those attorney have no "need to know" what's in classified documents. The question now is whether Walker will blink.